Following calls for the UK government to class long COVID as a disability for the purposes of the 2010 Equality Act, and for classification as an occupational disease to allow people to seek compensation, Priya Gill, Associate and Neil Sanderson, Litigation Executive at law firm Kennedys, consider the current position.

Patients who still experience health problems three months after a SARS-CoV-2 infection, with continuing symptoms and no other explanation for such symptoms, are said to have post-COVID syndrome (PCS), also known as ‘long COVID’.

According to the Office for National Statistics, the most recent data from 5 March 2023 estimated that 1.9 million people are suffering from long COVID in the UK.

Government response to long COVID: the current position
The initial response by the government, has been to undertake research into long COVID to help identify and better understand the affects it can have on people, and potential treatments and therapies to assist in addressing these.

The first project was led by Imperial College London, which involved people taking part in the Real Time Assessment of Community Transmission (REACT) study.

The REACT study found that patients with persistent symptoms fell in to two groups, these being those who experienced more severe respiratory symptoms and those who reported tiredness, often with muscle aches and difficulty sleeping.

Research is ongoing and it remains to be seen whether long COVID will be classed as an occupational disease and if a compensation scheme will be introduced.

The Industrial Injuries Advisory Council (IIAC)
The IIAC is responsible for making recommendations to the UK government upon which current (or emerging) conditions or diseases affecting the UK working population should be ‘prescribed’ for the purposes of eligibility for payment of benefits under the Industrial Injuries scheme.

In April 2021 the IIAC published the Position Paper ‘COVID-19 and Occupation’.

The IIAC was keen to stress that the adverse effects upon health arising from exposure to the SARS CoV2 infection (the virus which leads to COVID-19) in the workplace are “indistinguishable from infection transmitted in non-occupational circumstances”.

Whilst it was found that prescription was not justified on the basis of the data available at the time of drafting the position paper, the IIAC signalled its intent within the summary to the report:

“… the evidence of a doubling of risk in several occupations indicates a pathway to potential prescription and the Council expects that future data will enable a better understanding of the effect that Post-COVID-19 syndrome may have on loss of function. The Council will recommend prescription if and when there is strong enough evidence that occupational exposures cause disabling disease on the ‘balance of probabilities'.”

Moving forward to 2022, and following their analysis of a wealth of subsequent scientific reports upon the symptoms, illnesses and pathology associated with COVID-19, the IIAC’s ‘COVID-19 and Occupational Impacts’ report was presented to Parliament in November 2022.

The IIAC found compelling evidence of a clear association between work in a health and social care environment (where employees are in frequent close proximity with patients, clients, etc.) and an increased risk of COVID-19 infection, illness and death.

The IIAC therefore recommended prescription of the following conditions for health and social care workers:

1. Persistent pneumonitis or lung fibrosis following acute COVID-19 pneumonitis.
2. Persisting pulmonary hypertension following a pulmonary embolism.
3. Ischaemic stroke.
4. Myocardial infarction.
5. Symptoms of Post-intensive Care Syndrome following ventilatory support treatment for COVID-19.

An inquest into the deaths of two nurses, Gareth Roberts and Domingo David, by the Senior Coroner for South Wales Central was a significant ruling in that it was the first case recognised in England and Wales to class COVID-19 as an industrial disease. The finding, in January 2023, was based on the fact that although the two nurses were given the appropriate PPE, they had both been exposed to COVID-19 at work and that was the cause of their deaths.

If the UK government does choose to implement the recommendations provided by the IIAC, anyone suffering from one of the five discrete conditions listed above may be able to claim for Industrial Injuries Disablement Benefit (IIDB) to support them with their ongoing symptoms.

Whilst the IIAC considered evidence of an increased risk for public transport workers, taxi drivers and those working in protective services (security guards etc) it was considered to be insufficiently robust to justify prescription, and the evidence of association within the educational services and retail sectors was inconsistent. At this time, a recommendation for prescription for occupations other than those in the health and social care sector is unlikely.

The IIAC considered Post-COVID Syndrome (more commonly known as ‘long COVID’) but concluded that there was a lack of reliable data to support prescription at this stage across all occupational groups. This is likely to be a fluid situation however as the scientific and medical understanding of the physical effects of long COVID are better understood, the course of the condition becomes better known and its effects more predictable.

Future developments?
Currently there is no entitlement to seek benefit payments under the Industrial Injuries scheme by those in the UK working population experiencing persistent COVID-related symptoms.

If the government were to implement the current recommendations of the IIAC, only those persons who contracted COVID-19 whilst working in a health and social care setting would be eligible for payment of benefits under the (proposed) scheme (and only then if they are suffering from one of the five discrete conditions listed above).

UNISON has recommended that employers conduct individual risk assessments with employees who are experiencing long COVID. Properly assessed work environments not only lower the risk of employees contracting COVID from those around them, but also ensures employees who are experiencing long-lasting symptoms are properly protected.

There are a number of ongoing studies looking at mortality data from 2021 and 2022 in addition to studies considering UK workplace COVID-19 outbreaks.

A further report to Parliament is therefore likely in due course and a recommendation for prescription may be extended to further occupations and for further COVID-related sequelae, but it remains to be seen whether Parliament will implement any of the IIAC’s recommendations.